Can Arkansas Office of Personnel Management apply a 30-day break-in-service limit to teacher sick leave transfers?
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This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Richard Weiss, Director of the Department of Finance and Administration, asked AG Dustin McDaniel whether the Office of Personnel Management (OPM) could apply its 30-working-day break-in-service rule (used for state employees under A.C.A. § 21-4-207(e)(3)) to teachers transferring between school districts under A.C.A. § 6-17-1206. The AG concluded the answer is "probably no." The two statutes were enacted in the same 1975 session, and the General Assembly used "without a break in service" language for state employees but conspicuously omitted that language from the teacher statute. Reading a 30-day limit into the silent teacher law would be improper without legislative clarification. The AG flagged the issue as one where legislative attention was warranted.
Currency note
This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
What the AG concluded
The two statutes are similar but not identical:
A.C.A. § 21-4-207(e)(3) (state employees): Sick leave transfers between state agencies only when the transfer is "without a break in service." OPM had interpreted "without a break in service" to mean a break of no more than 30 working days.
A.C.A. § 6-17-1206 (teachers, education service cooperatives, state education agencies, two-year colleges): Teacher sick leave transfers when the employee leaves one school district, education service cooperative, state education agency, or two-year college and accepts employment in another, with a 90-day cap on transferrable accumulated sick leave. The statute is silent on any time gap between separations.
The AG reasoned: when two laws are enacted in the same 1975 session (Act 567 for state employees, Act 177 for teachers), and the legislature includes a break-in-service limit in one but not the other, that pattern suggests the omission was deliberate. Under Scroggins v. Medlock, courts will not read into a statute a provision not included by the General Assembly absent clear evidence that the omission would frustrate legislative intent. The AG saw no such clear evidence here. So OPM's proposed reading of the teacher law (importing the 30-day limit) would probably be improper.
Common questions
Q: Is the AG saying there is no time limit at all on teacher sick leave transfer?
The AG was careful: the statute itself imposes no time limit. The AG also noted that "common sense suggests there must be some limit" but said he could not, as an executive branch officer, supply a rule the legislature has not stated.
Q: What was OPM trying to accomplish?
Administrative consistency. OPM administers the state-employee rule and wanted the same operational guidance to apply to school employees so the rule was uniform.
Q: What is "common law" guidance worth here?
Not much. The Arkansas Supreme Court will read a statute as written and will resist reading in additional restrictions absent clear evidence that the legislature intended them. So an OPM policy that imports a 30-day limit could be challenged by a teacher who lost transferred sick leave because of it.
Q: Why doesn't the AG just adopt OPM's reading and clean up the statute later?
Because the AG is "an officer of the executive branch" and "cannot supply a rule where the legislature has not stated one" (citing Op. Att'y Gen. 2013-026). That kind of gap-filling is for the legislature.
Q: What does the statute say about which districts and which employees it covers?
A.C.A. § 6-17-1206 originally covered only teachers and school districts (Act 177 of 1975). Later amendments (Act 834 of 1991, Act 774 of 1999, Act 617 of 2007) extended it to education service cooperatives, state education agencies, two-year colleges, and other school district employees. The 90-day cap on transferred sick leave still applies.
Background and statutory framework
The AG laid out the two parallel statutes from the same 1975 session. The state employee statute explicitly conditioned sick leave portability on continuous service. The teacher statute did not. That deliberate textual difference is the AG's key piece of evidence about legislative intent.
The opinion ends with an observation that, given the patchwork of administrative interpretations across school districts, education service cooperatives, and OPM, similarly situated employees could end up treated differently — and that legislative clarification is "distinctly warranted." Whether the legislature acted on that hint is not addressed by this opinion.
Citations
Statutes
- A.C.A. § 6-17-1206 (teacher sick leave transfer; 90-day cap; no break-in-service limit)
- A.C.A. § 21-4-207(e)(3) (state employee sick leave transfer; without-break-in-service requirement)
- Act 177 of 1975 (original teacher sick leave transfer act)
- Act 567 of 1975 (original state employee sick leave transfer act)
- Act 834 of 1991, Act 774 of 1999, Act 617 of 2007 (amendments expanding § 6-17-1206 coverage)
Cases
- Scroggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781 (Arkansas Supreme Court)
Prior AG opinions referenced
- Op. Att'y Gen. 2013-026
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2013-129
March 18, 2013
The Honorable Richard A. Weiss, Director
Department of Finance and Administration
1509 West Seventh Street, Suite 401
Post Office Box 3278
Little Rock, Arkansas 72203-3278
Dear Mr. Weiss:
This is my opinion on your question about a law that lets teachers keep unused sick leave when changing school districts. Your question concerns a teacher leaving one district but not immediately starting with another.
As you note, the law does not state a limit on the time that may pass between the teacher's leaving one district and joining another. You compare the law to one that lets a state employee keep sick leave when transferring between state agencies "without a break in service." You state:
The Office of Personnel Management policy is that if a state employee transferring between state agencies has a break in service for more than 30 working days then the sick leave will not transfer. For consistency, OPM would establish the same 30 working day time period for public school employees and requests your opinion on whether this is proper application of the law.
Your question, as I understand it, is whether OPM's proposed interpretation — the denial of sick-leave transfer if a teacher has a break in service of more than 30 working days — is proper application of the law.
RESPONSE
In my opinion, the answer to your question is probably "no."
While the two laws you cite are similar, they differ in an important respect already noted: the state-employee law lets a transferring employee keep sick leave only when the transfer is "without a break in service." The teacher law, on the other hand, does not expressly limit teachers' rights similarly. Nor do I see a compelling reason to read such a limit into the law.
These laws were enacted in the same session of the General Assembly, whose express limit on state-employee rights and simultaneous omission of a similar limit on teacher rights may evidence legislative intent to treat the two groups differently. The state-employee law demonstrates that the General Assembly knew how to and did limit sick-leave-retention rights by express provision when it deemed that appropriate. That it did not state a limit in the teacher law I take to evidence a lack of intent to impose the limit stated in the state-employee law. Absent clear evidence that an omission will frustrate legislative intent, courts will not read into a statute a provision not included by the General Assembly. I see no such clear evidence here and so conclude that a court would not read a no-break-in-service rule into the teacher law. It follows, in my view, that interpreting the teacher law in the same way as a law that contains a no-break-in-service rule probably would be improper.
Assistant Attorney General J. M. Barker prepared this opinion, which I approve.
Sincerely,
DUSTIN McDANIEL
Attorney General
DM:JMB/cyh
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